L5 News: Moon Treaty Hearings

From L5 News, September 1980

On July 29 and 31, the Stevenson Subcommittee of the Senate Commerce, Science and Transportation Committee held oversight hearings on the Moon Treaty. The witness lineup for the first day included NASA Administrator Robert Frosch, State Department Legal Advisor Roberts Owen, NASA General Counsel Neil Hosenball, Dr. Arthur Morrisey from the Office of Science and Technology Policy, and L-5 Counsel Leigh Ratiner.

The most important point made by any of the Administration witnesses came in Owen’s opening statement, when he acknowledged that there was no chance that the United States would sign the Moon Treaty before next year. Each of the agency spokesmen was quick to point out that the Administration is still reviewing the question of signature in an interagency task force and that no agency has as yet officially decided to support the Treaty. (Anyone in Washington will tell you that L-5ers get all the credit for this development.)

Owen’s statement stressed the now well-worn State Department arguments in favor of the Moon Treaty — that it does not establish a legal moratorium on commercial minerals extraction, that it does not obligate the United States to become a party to a second resource regime we find unsatisfactory, and that the common heritage principle applied to lunar resources under the Moon Treaty will be interpreted independently from the way it has developed in the deep seabed negotiations at the Law of the Sea Conference. In an important concession, however, he acknowledged that, in order to mitigate some of the uncertainties in the Moon Treaty, it might be necessary to include clarifications of understandings in the United States instrument of ratification.

Frosch’s statement concentrated on technical issues related to lunar resources, and the costs and probable timing of their exploitation. While Frosch testified that lunar materials extraction is technologically feasible, he felt that the economics were presently prohibitive. During questioning by Senator Stevenson, Frosch characterized his attitude about the Moon Treaty as “massive indifference” and revealed his personal opinion that the Moon Treaty would have little effect on NASA programs and does not advancethe field of space law very far. He did state a preference, however, for waiting to establish legal regimes until the activities to be governed were feasible. Frosch suggested that the opposite approach (followed in the Moon Treaty) runs the risk of failing to protect future national interests we cannot even anticipate today.

Additional witnesses on July 29th were Ronald Stowe and Charles Sheffield of the American Astronautical Society (AAS), and Lew Friedman and Jerry Grey of the American Institute of Aeronautics and Astrophysics (AIAA). Neither of the two organizations had adopted official positions on the Moon Treaty. Stowe, testifying in his personal capacity, endorsed United States signature and ratification, provided it is accompanied by certain unilateral understandings. On one point, these private sector spokesmen were in complete accord — that enhanced US Government support for space development is indispensable to the commercial utilization of lunar resources, with or without the Moon Treaty.

The lead-off witnesses on the 31st were the L-5 Society’s president, Gerald Driggers, and its Washington counsel, Leigh Ratiner. (Ratiner had originally been scheduled for the 29th.) Ratiner devoted most of his statement to responding to arguments raised in favor of the Moon Treaty and to presenting a new proposal to prove the validity of L-5’s arguments that “common heritage” means what we say it means.

Ratiner pointed out that the debate about US ratification of the Moon Treaty had both a practical and a legalistic side. While the legal definition of the “common heritage” principle may be left open under the Moon Treaty, as supporters argue, the practical meaning of the term is well-established for most countries. As a result, Ratiner stated, there is little chance that United States industry will be willing to invest in space development on the basis of legalistic interpretations alone. To resolve the dilemma, Ratiner suggested that the United States inform the UN Committee on the Peaceful Uses of Outer Space that it will not sign the Moon Treaty unless and until the Committee concludes a protocol that defines “common heritage” in a manner protective of United States interests that leaves no room to doubt how the term will be implemented in practice. Senator Stevenson asked Ratiner if he thought the State Department could successfully negotiate a “good definition” of common heritage in a protocol. Ratiner replied, “No,” but if they try and fail, the Senate will be glad to learn this before approving the Moon Treaty; and if they really do succeed, the treaty would be unobjectionable.

Two other witnesses, Marne Dubs representing the American Mining Congress, and Richard Darman of Harvard’s John F. Kennedy School of Government, agreed with Ratiner on the importance of looking beyond legal interpretations to political and practical factors. Dubs cited the experience of the American ocean mining industry to show how ratifying the Moon Treaty in its present form could retard private industry participation in space development. Darman felt that a central point to assess in the debate was the probability that the future Moon Treaty regime would be similar to the deepsea regime emerging at the Law of the Sea Conference.

Testifying from a different perspective, Eilene Galloway argued that it was entirely possible for the future lunar resource conference called for in the Moon Treaty to develop a regime like INMARSAT, and suggested that the United States set up an advisory committee right now to begin working toward that goal.

James Arnold of the University of California at La Jolla, and Edward Bock from General Dynamics Corp. rounded out the witness list. They spoke from a technical viewpoint and, like Frosch and AAS and AIAA representatives on the 29th, emphasized that space resource development was technically feasible but highly speculative in economic terms. Like Dubs, they also felt that the Treaty’s potential disincentive to private industry initiative was probably its most damaging feature.


This news service is provided for the L-5 News by the office of L-5 Attorney Leigh Ratiner, of Dickstein, Shapiro and Morin, Washington, DC.